Calling for a real debate about free speechPrince Arthur Herald, 13 August 2013

February’s Supreme Court decision in Saskatchewan Human Rights Commission v. Whatcott set off a predictable storm between the opponents and proponents of absolute free expression. But aside from showing, while failing to address, that human rights commissions are not an appropriate avenue for enforcing potentially legitimate speech restrictions, the ruling and its ensuing response missed a necessary discussion about the pros and cons of a First Amendment approach to this issue.

My thesis here is that both sides of the free-speech debate have cocooned themselves into a position where their opponent’s best arguments — and both sides do have good arguments — simply do not have to be answered. In the United States, where the discussion is allowed to take place in a much purer form, both the opponents and proponents of speech restrictions (the “Absolutists” and the “Restrictionists”, for brevity’s sake) have in their minds a paradigmatic case whose invocation counts as a trump. For the Absolutists, the fatwa against Salman Rushdie in 1989 and the Danish Cartoon Controversy of 2006 show the pure evil of censorship. For the Restrictionists, the regular display of inhumanity by the Westboro Baptist Church, whose members picket the funerals of military veterans on the basis of twisted religious dogma, shows the limits to giving demagogues carte blanche to say whatever they wish, and with constitutional protection.

Most people who are not directly involved with one side, and even some of those who are, can see that there is an overlapping reasonableness to the purports of both of these cases. This leaves room for a real debate, which is happening on college campuses and in the pages of American magazines as we speak. But in Canada, the existence of human rights commissions has made such a dialogue impossible for the foreseeable future. This is because these tribunals are such an antidemocratic and censorious instrument that the only viable position to take is one of free speech absolutism. To hold any other view is tantamount to giving up ground to an institutional force that has sucked away all of the grey area, of which there is much. This is a genuine shame, since many of the bluffs on both sides deserve to be called.

Beginning with Restrictionists, it is clear that raising the threshold of hate speech to include such expressions as moral opposition to homosexuality and resistance to the unconditional toleration of Islam betrays any respect for the most important kind of diversity — the diversity of opinion, which includes opinion that many people would consider to be outrageous and unthinkable. Once a society’s deference for the freedom to speak an unpopular view is broken, even the most innocuous expression of heterodoxy (see the brouhaha surrounding Tom Flanagan’s remarks a few months back about child pornography) can bring about the most exaggerated and misplaced hysteria.

On the Absolutist side, there exists a stunning denial of the fact that hate speech can be directly harmful. Racial incitements that are not arguments but instead straightforward attempts to encourage and elicit violence not only create the strong possibility of direct physical harm, but also undermine the targeted person’s intrinsic entitlement to respect and dignity. Whether or not this justifies restriction is arguable, but that it constitutes harm is not.

Due to the possibility of harm resulting from hate speech, John Stuart Mill included a germane passage concerning censorship in On Liberty. Mill advanced many of the most convincing arguments in favour of free expression that have yet been suggested, but he included a proviso: that speech resulting in direct harm constitutes a legitimate ground for censorship. He wrote that, “No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.”

et us use a contemporary example to illustrate Mill’s point: In Uganda, it is common practice for newspapers to publish the names of homosexuals for the purpose of “informing” their readers of whom to target for vigilante justice. What they are doing is not making a direct threat, as they are simply publishing names on a page. But given the context, the mere action of publishing those names is enough to put innocent people in very serious danger. Should the law be indifferent about that? Mill’s argument would seem to suggest not, and one would guess that many of today’s Absolutists might agree.

My intent here is only to suggest that what appears to many people to be a straight edge is in fact quite jagged, and that there is room for a real debate about the limits of free speech. Instinctively, my sympathies lie with the argument that bad claims should simply by countered by the expression of good claims. But even this move, cogent as it is, has its limits. We do not live in a society where all citizens apprise themselves of public arguments, even important ones, and the places where reasoned ripostes would be made are often insufficiently influential to deal with truly harmful speech. This may mean that the Restrictionists have, at the very least, a point worth listening to.

But none of this important dialogue can occur so long as Canada remains in the grip of human rights commissions. Before the cacophony of bureaucratic speech-policing began, there was a common law tradition that placed some restrictions on speech, albeit on the basis of a high burden of proof concerning the actual harm of the words in question. Where any limit should be set is a question that the Canadian public, in concert with its representatives in Parliament, needs to address. One hopes that the environment for such a conversation can be established soon, beginning with a wholesale rebuke of the status quo.